Litigation

NY Times: Time to ?Scrap Judicial Elections?

By Peter Hardin

The 2010 judicial elections, “awash in cash and blaring attack ads,” argue persuasively for ending the election of judges to the bench, a New York Times editorial declared today.

The editorial, entitled “A Blow to the Courts,” cited Election Day outcomes in Iowa and Illinois as among the most troubling.

In Iowa, outside groups including the National Organization for Marriage and the American Family Association joined in an effort to oust three Supreme Court justices over a unanimous ruling that permitted same-sex marriage. The ouster effort pumped in at least $1 million to dump the judges, while a group working to support them spent about $400,000. The editorial noted that although the justices were voted out in the retention election, the court ruling will not be overturned:

“The 2009 ruling will stand. But the judges? defeat is sure to make other elected judges shy from rendering controversial rulings, especially before elections.”

In Illinois, Justice Thomas Kilbride raised about $2.5 million from labor interests, plaintiffs’ lawyers and other groups channeling funds through the Illinois Democratic Party in order to beat back a $650,000 ouster drive by business and insurance interests. The money-raising “from interests with regular business before the court has left a cloud around his tenure,” the editorial said. It concluded that retention elections in 2010 didn’t always work as they were intended:

“These elections are supposed to spare sitting judges from competing in multicandidate contests, making the process as apolitical as possible. It didn?t work that way this year in Iowa, or in many other states…

“This year?s campaign is one more reminder of why the 39 states that hold judicial elections should scrap them in favor of merit screening and appointment of judges for a long fixed term. For that to happen, state legislatures and voters would need to revise state constitutions, typically a lengthy and difficult process. At a minimum, these states must put in place strict rules barring judges from ruling in cases involving major financial supporters.”

Other news media voices have joined in ongoing debate. A Philadelphia Inquirer editorial, entitled “Targeting judges,” said Iowa voters dealt a “body blow” to the notion of judicial independence:

“Iowa voters chipped away at a cornerstone of justice, which calls for judges to rule without fear or favor. If judges tailor their decisions to the popular will, rather than the law, the courts will become just another political area where the outcome is determined by the highest bidder.

“One hopeful result of the Iowa debacle could be that the legal community pushes back hard against politicizing the bench. For their part, voters in several states showed good sense by rejecting other one-issue campaigns targeting judges.”

In addition, the editorial suggested, the Iowa outcome could be used to defuse criticism of switching to merit-selection plans in Pennsylvania and other states. After all, it said, “no one can say that voters were denied their voice.”

In National Review Online, Thomas Sowell offered an alternative view under the headline, “Stopping Judicial Imperialism.” The following excerpt captures the heart of his argument:

“Those who believe in gay marriage are free to vote for it. But, when they lose that vote, it is not the role of judges to nullify the vote and legislate from the bench. Judges who become politicians in robes often lie like politicians as well, claiming that they are just applying the Constitution, when they are in fact exercising powers that the Constitution never gave them.

“If they are going to act like politicians, then they should be voted out like politicians.”

He concluded with a barnyard reference: “The time is long overdue to stop treating judges like sacred cows, especially when they have so much bull.”

Full post as published by The Gavel on November 09, 2010 (boomark / email).